This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Tuesday, December 27, 2011

On Journalistic Integrity and on Who Dropped the Ball

The International Co-Prosecutor (CP) and the defense recently went at it over the admissibility of a juicy nugget of evidence – Thet Sambath’s book based on his interviews with Noun Chea which had taken place over a number of years. The CP claimed that they had put the book on the case file and the defense rebuffed it with a ‘we haven’t seen it’ only to evoke the CP’s less than kind rebuke that the defense’s inability to follow the development of the case file was not the prosecution’s problem. While attacking the adducing of the book as a matter of due diligence, the defense would have gone at it full throttle had they read the book or otherwise known its contents. Both the defense and the prosecution dropped the ball. Thet Sambath’s work did not exactly come out of nowhere and was not exactly unknown to those who looked. One would think that if you are a defense lawyer representing a high-profile client who had been interviewed by at least 50 people the years leading up to the establishment of the ECCC and Noun Chea’s subsequent arrest, you would talk to your client about these interviews and possibly ask if any of them had been videotaped. You would then proceed by running a couple of searches through amazon, bookstore websites and international databases and see if anyone has published any of those interviews, in whole or in part (a search of this kind would have brought this up: http://www.amazon.com/Behind-Killing-Fields-Victims-Pennsylvania/dp/0812242459/ref=sr_1_2?ie=UTF8&qid=1324962850&sr=8-2

Interestingly, this book came out about a year and a half ago and has since trickled all the way to Australia (where I bought it; costs close to $100 in Australia so allow me to recommend amazon instead) but no one sent a copy to Noun Chea’s defense (I am sure the publisher is very apologetic about this) but the prosecution did get the wind of it, even if a couple of days before the beginning of the proceedings in 002 (yet another miracle of the holiday season). If reading is not this Court’s forte, perhaps, viewing is. The documentary based on the same interviews as the book must have been shown on Singapore’s Channel NewsAsia about a dozen times in the last less than a year (that I am aware of).

Why is all the fuss about admitting this book – and the movie sometime down the road, I am sure – into evidence? The defense will be inconsolable when they find out. Thet Sambath was no ordinary researcher. Most of the rest of us came out to Pailin for a couple of days, interviewed Noun Chea and were out. Not Thet Sambath. He started long before most. He had a hunter’s patience. He kept coming back and kept talking about things of no consequence until a few years down the road he became Noun Chea’s confidant and got Noun Chea to say on camera what he had wanted him to say from the start, the truth. This was not a minor matter of interest to only about a dozen historians on the period (oh, Pol Pot learned how to dance polka when he was 7; how interesting; but really, who cares?). He got Noun to say that people were executed and that the Communist Party of Kampuchea (CPK) ordered the executions. Thet then relayed to Noun that “some” argued that instead of executing its enemies the CPK should have imprisoned them to which Noun answered “well, it is a matter of opinion” essentially saying ‘yes, we killed them and we were right but I can see that others are entitled to their own opinions and probably would have done it differently had they been in our shoes back then’. A juicy nugget of evidence that has the prosecution’s work cut out for them as nothing beats a confession (particularly an uncoerced and perfectly admissible one under the very permissive evidentiary rules of the Cambodian criminal procedure). If the defense waits around a bit longer, it will be able to get its hands on a copy of the DVD which is coming out in the States in February (http://www.amazon.com/Enemies-People-2-Disc-Special/dp/B00578K2H6/ref=sr_1_1?ie=UTF8&qid=1324962850&sr=8-1 look out, it might not be “available in stores near you” and it might take time for it to become available in Holland); alternatively, there are, of course, other methods for a court to subpoena evidence that is in public domain nonetheless (some of them are unsavory such as buying a pirated copy of the film in Phnom Penh or borrowing it from the riverfront joint which shows it for 3 bucks a pop or a P2P download; but, of course, with it being a court of law, here is an idea, how about asking Teth or whoever owns the copyright to see if they mind or would like to say 'no' to a criminal jurisdiction).

While his defense team is in for this astonishing holiday season gift of a discovery (which, trust me, will keep giving), Noun Chea knows what is on those interview tapes. Thet got him good. He says he was not aware he was being videotaped. Sure. There are segments of the film where Thet walks around Noun’s yard filming him with a camcorder. Didn’t notice that thing in his hand? There are many segments when Thet sits across the table from Noun and films him as he speaks. Didn’t notice a huge piece of plastic sitting on a perfectly clean table? Sure, there is always possibility. What Noun has trouble grasping is how Thet could do a number like this on him. He took Thet into his life and developed a fatherly bond with him. Thet ate at his house. They did gardening together. Thet made promises regarding these tapes to Noun telling him that they would only be used for Thet’s family archives (interestingly Thet repeats that in the film; perhaps, Thet represents the school of thought which sees us all, the human race that is, as one big family in which case, yes, he has held his promise and has only let his “family” see the tapes; I am proud to be a part of Thet’s “family” and I am sure so are thousands, if not millions, of others who have seen the film). Noun considered him a friend (although he said in court that he did not but this is not how their relationship comes across from the tapes) and became close to his family. A lesson to learn for Noun and a treasure trove of CPK history for the rest of us.

In light of this, it is particularly entertaining to see the Noun defense papering the Court with motion after motion contesting things of such infinitesimal value to their client’s case it bemuses the observer while being blissfully unaware of a major piece of inculpatory evidence the prosecution is about to sling at them (next time, duck, and pretend you know what they are talking about). The Noun defense team’s due diligence is now limited to at least telling their client that his copyright (such as it is in this case) and his right to privacy are not deal-breakers when it comes to the admissibility of evidence in Cambodia and evidence of ‘core international crimes’ anywhere.

While the prosecution only named a handful of those who had interviewed Noun Chea in his Pailin home, there is many more and the defense will be in for a treat if the prosecution manages to dig up those interviewers’ transcripts.